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ROLE OF EXECUTIVE MAGISTRATE IN MAINTAINING PEACE AND

ORDER

(UNDER CRIMINAL PROCEDURE CODE, 1973)

THE CODE OF CRIMINAL PROCEDURE

CRIMINAL LAW II

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ACKNOWLEDGMENT

I thank ------------------- for assistance, and for comments that greatly improved
the manuscript, who gave me the golden opportunity to do this wonderful project
on the topic , which also helped me in doing Research and I came to know about
so many new things.

Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.

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ROLE OF EXECUTIVE MAGISTRATE IN MAINTAINING PEACE AND
TRANQUILITY

POWERS AND FUNCTIONS EXECUTIVE MAGISTRATES

CRIMINAL PROCEDURE CODE, 1973:

BACK GROUND:

The law on criminal procedure applicable to all criminal proceedings in India


(except the State of Jammu and Kashmir and Nagaland and the tribal areas of
Assam) is contained in the Code of Criminal Procedure, 1898 .

This code has been modified from time to time by various Acts of central and
state legislatures. In addition to several changes, the provisions of the 1898 Code
remained virtually unchanged through the decades and no attempt was made to
have a complete overhaul of the old code until the Commission of the central law
was implemented in 1955.

A detailed report for the revision of the Code, namely the first report Forty, was
introduced by the Law Commission in 1969. One of the main recommendations

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of the Commission is to ensure the separation of the judiciary from Executive on
all India basis in order to achieve uniformity in the matter.

Based on the recommendations of the Law Commission, the Code of Criminal


Procedure of 1973 was enacted extending to the whole of India except the State
of Jammu and Kashmir. It entered into force on 1st day of April 1974.

In this code, there is a distribution of magisterial functions between two


categories of magistrates "court" under the control of the High Court and
"Executive" under the control of state government.

ANALYSIS OF IMPORTANT SECTIONS:

Section 20 Cr.P.C. (Executive Magistrates) :

In every District, the following Officers are appointed as Executive Magistrates


by the Government U/S 20 Cr.P.C.

Collector

Joint Collector

District Revenue Officer

Revenue Divisional officer

Tahsildar

The above Officers are appointed as Magistrates by virtue of the Offices held by
them as noted against each.

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Designation of the Officer Appointed as Local Jurisdiction
(1) (2) (3)

1. Collector District Magistrate Entire District


2. Joint Collector Addl.Dist. Magistrate Entire District
3. Dist.Rev.Officer Addl.Dist. Magistrate Entire District
4. Rev.Divil.Officer Sub Divisional Magistrate Entire Revenue
5. Tahsildar Mandal Executive Magistrate Entire Mandal

Additional District Magistrates shall have such of the powers of a District


Magistrate under this code or under any other law for the time being in force.

Additional District Magistrates have powers as a District Magistrate under this


Code or under any other Act in force.

Additional District Magistrates are not allowed to issue a detention order under
law on preventive detention and NASA. All other executive magistrates as Addl.
district magistrate must be subordinated to the district magistrate. And every
executive magistrate (other than S.D.M) exercising powers in a sub-division is
also subject to the Sub-division magistrate, subject, however, the general control
of the district magistrate.

District Magistrate may from time to give special orders, in accordance with this
Code, as to the distribution of cases between the subordinate executive
magistrates to him and the assignment of cases to an additional district
magistrate.

In Andhra Pradesh, in the cities of Hyderabad and Secunderabad, Vijayawada and


Visakhapatnam, police commissioners have been given the powers of executive
magistrates.
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Section 21 Cr.P.C. (Special Executive Magistrates) :

Under Article 21 Cr.P.C. the State Government may appoint, for the term they
deem fit to be known as "The special executive magistrates" for specific areas or
for the execution of specific functions and give this special

The executive magistrates, such powers as are conferrable under the code.

In general, sub-collectors and Tahsildars and sub-Tahsildars appointed special


executive magistrates to manage Law and Order urgent problems on special
occasions

Section 22 Cr.P.C. (Local Jurisdiction of the Executive Magistrate) :

Under Section 2 of the Cr.P.C. the local jurisdiction of the Executive Magistrate
is determined by the District Magistrate, subject to the control of the State
Government, within which the Executive Magistrate may exercise all or any of
the powers invested under the code. Unless so determined, the jurisdiction and
powers of every such Magistrate shall extend throughout the district.

Section 23 Cr.P.C. (Subordinate of Executive Magistrates) :

The Executive Magistrates, other than the Addl. District Magistrates, shall be
Subordinate to the District Magistrate and every Executive Magistrate (other than
the Sub Divisional Magistrate) exercising powers in a Sub Division shall also be
subordinate to the Sub Divisional Magistrate, subject to the general control of the
District Magistrate. The District Magistrate may make rules or give orders, from
time to time, as to the distribution of business among the Executive Magistrates
subordinate to him and as to the allocation of business to an Additional District
Magistrate.

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OBJECT OF 107 Cr.P.C.:

The main purpose of this section is "preventive, not punitive." This section is to
allow the Executive Magistrate to take steps to prevent the commission of
offenses involving a breach of the peace or disturbance of the public tranquility.1

PROCEDURE:

When an Executive Magistrate receives information that any person is likely to


commit a breach of the peace or disturb the public tranquility or to do any
wrongful act that may probably cause a breach of the peace or disturb the public
peace, it must pass through the FIR (First information Report) and relevant
documents placed before him and he believes that there are sufficient grounds for
instigating, he must spend orders, register the same on the right corner of the first
page of the FIR stating:

"I have carefully read the FIR and the relevant material placed before me and I
am convinced that there are sufficient grounds to sue U/s 107 Cr.P.C.2,

I have perused the FIR along with the relevant material placed before me and I
am satisfied that there are sufficient grounds to initiate action U/s 107 Cr.P.C.
Taken on file. Issue Order U/s 111 Cr.P.C with summons U/s 113 Cr.P.C.

Before initiation of the action U/s 107 Cr.PC, we must ensure that the FIR
contains the brief facts of the case, the people involved, addresses, etc., and the
list of PG and also property directions to decide the amount of bail to be set.
When all these things are available and satisfaction by the executive magistrate
as indicated above, it makes an order in writing to U/s 111 Cr.PC, setting out the
substance of the information received, the amount of the deposit to run and direct

1 C.v krishnappa shetty v. Karnataka, 1979 Cr IJ (NOC) 184

2 Sudharshn singh v. Govind, 1971 Cr LJ 1822


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the respondents to justify why they should not be ordered to execute a bond for
Rs. ......... (specify amount here) with or without security (to be decided and
shown here) as to each sum to keep the peace.3

Summons U/s 113 Cr.P.C., shall be accompanied by a copy of the order made U/s
111 Cr.P.C.

A date and time when all respondents are present, the content of Article 111
Cr.PC, are read or explained U / 112 Cr.PC and curious / ask each respondent
admits the offense / illegal act has been committed by him and if he refuses the
return of offense / wrongful act charged against him, so he should be in writing in
the prescribed form and his signature is duly attested by the executive
magistrate.4

BREACH OF PEACE AND DISTURBANCE TO PUBLIC TRANQUILITY

It arises due to:

Religious Processions

Festivals

Elections

Political Movements

Supremacy in the Village

Disputes due to factions

Group Rivalry etc.,

3 Ram saran singh v. Ramakanth 1962 Cr LJ 575

4 Gajanand, 1943 Nag 609; AIR 1943 Nag 88.


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IMPORTANT POINTS TO BE KEPT IN MIND WHILE DEALING THE
CASES U/S

Cr.P.C.

The information should not be the police only. It may also be public. Only new
incidents of breach of the peace or disturbance of public tranquility as misguided,
evil, etc., must be taken into account. Older incidents are useful only to prove the
existence of enmity between the opposing parties, but they give no support to the
theory that there is an imminent danger to peace. Convictions on new incidents,
strengthens the case of U/s 107 Cr.P.C.

When FIR with its enclosures are received, the Executive Magistrate shall make
his first with the date and time of receipt and the way it was received. ie, either in
person or by mail. FIR and pens, Received for action 5

U/s 107 to 110, 145 to 147 should be immediately examined and no defects, take
the case under the relevant provisions of Cr.P.C. If there are defects, it can be
returned for correction and resubmission.

Magisterial case should be registered in registry 6 and serially numbered and


have continued each year.

An order of U/s 107 Cr.P.C. happened when the executive magistrate is of the
opinion that the information received by him to the effect that any person is likely
to commit a breach of the peace or disturb the public peace is credible.

5Mithya v. State of Rajasthan, 1987 Cr LJ 1042 Raj.


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SECTION 108 Cr.P.C:

Security for good behavior from a person disseminating seditious questions.

Commission of a single offense or isolated at any given time does not justifys
shares U/s 108 Cr.P.C.

We must show that there is an intention to disseminate seditious questions or to


continue operations in the immediate future.

SECTION 109 Cr.P.C:

It deals with a person who is coming within the limits of an Executive Magistrate
jurisdiction and is taking precaution to conceal his presence with a view to
committing a cognizable offence.

The object is to enable an Executive Magistrate to proceed against Suspicious


stranger lurking within his jurisdiction.

ESSENTIAL CONDITION BEFORE APPLYING SECTION 109 Cr.P.C.:

Before applying Sec. 109, the executive magistrate should see two things needed:
-

The person is careful to hide his presence; and concealment must be to commit
an offence. 6

OBJECT OF SECTION 110 Cr.P.C.:

To protect the public against hardened and habitual criminals.

PROCEDURE:

6 Ram Birich Ahir, 1926 6 PAT 177, 183 AIR 1926 PAT 569.
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In respect of the above Sections, the Executive Magistrates should direct the
Respondents to execute bonds for a period not exceeding one year with or
without sureties for the cases7 initiated U/s 108, 109 and for a period not
exceeding 3 years in respect of section 110 Cr.P.C.

The procedure as laid down U/s 107 Cr.P.C. is applicable in these cases also i.e.,
issue of Order U/s 111 Cr.P.C. etc.,

SECTION 129 Cr.P.C.:

(Unlawful Assemblies Dispersal of Assembly by use of Civil Force).

All executive magistrate or officer in charge of the police station or in the


absence of such an officer in charge, any police officer not below the rank of a
police sub-inspector can order an illegal assembly or assembly of five or more
persons likely to cause a disturbance of the public peace, to disperse; and it is
then the duty of the members of this assembly to disperse accordingly. 8

If, when so ordered, as a whole does not disperse, or are not controlled, it leads to
indicate a desire not to disperse any Executive Magistrate or police officer
referred to the Sub Section (1) may proceed to disperse such assembly by force
and may require the help of a male person, not being an officer or member of the
armed forces and acting as such, in order to disperse this assembly, and if
necessary, stop confining people who are part of it, to disperse the assembly or
can be punished by law.

UNLAWFUL ASSEMBLY DISPERSAL: POINTS TO BE REMEMBERED:

The police must ensure the presence of an executive magistrate where a breach of
the peace is expected. The executive magistrate obtained the power to give the
7 Hari Telang, 1900 27 Cal 781.

8 Ambica Proshad, 1885 10 Bom 174, 175


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police in order to help manage the situation. the senior police officer more should
help the executive magistrate. The Police shall act as ordered by the Executive
Magistrate.9 The executive magistrate is responsible for making a decision as to
when illegal assemblies should be dispersed. The Executive Magistrate shall have
final opinion to the illegal gathering of dispersion. If the force is not enough, the
use of force must be tempted to control illegal assembly. The executive
magistrate ordered the type of force to use. Cooking must be ordered only as a
last resort. part of the police to form with 2 or more to disperse an unlawful
assembly. firing order must be made by the order in command of the game. The
executive magistrate communicates orders to the force. Police will give the order
if necessary.

To disperse the crowd, the agent gives a clear warning before the use of tear gas
or lathis. If the crowd did not manage to disperse, despite the warning, the
cooking can be given. The police officer decides the minimum laps to cook.
Cooking objective must remain low and directed against the most threatening
part of the crowd. Files or sections controlled fire must immediately unload after
cooking without further watchword until the order to cease fire was finally given.
The cooking must be stopped the movement of the crowd dispersed from the
scene. Cooking must be done from a distance sufficient to avoid the risk of being
cast out and to help limit the fire control must be maintained.

The authorization of the executive magistrate is necessary in case the police are
obliged to disperse the crowd in different locations of the same village.

Riot flags should be taken when the military reserves are called in the fear of
disruption and before cooking or any other means of dispersion is resorted to
should be hoisted in front of the crowd in a position in which the inscriptions on
them are clearly visible.

9Naresh Kumar Jain v. State of UP, 1993


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The executive magistrate or police officer must make adequate arrangements to
shift the injured to hospital for medical help. Dead people should be sent to the
morgue. The following points should also keep in mind while initiating action of
129 Sec Cr.P.C.

Conduct and behavior of the whole is to be determined. Mere physical presence


of all people can not members of the illegal assembly do. gathering illegal refusal
to disperse can be dispersed by force. An order to disperse an assembly can be
transmitted even when the assembly is not illegal, but is likely to cause a breach
of peace namely potential illegal gathering.The Executive Magistrate or Police
Officer shall make adequate arrangements to shift the wounded persons to the
Hospital for Medical Aid. Dead persons should be sent to Mortuary. The
following points should also be kept in mind while initiating action U/s 129
Cr.P.C.10

Conduct and behaviour of the assembly is to be determined. Mere physical


presence of all persons cannot make them members of unlawful assembly.
Unlawful assembly refusing to disperse can be dispersed by force. An Order to
disperse an assembly can be passed even when the assembly is not unlawful but
is likely to cause breach of peace i.e. potential unlawful assembly.

SECTION 133 Cr.P.C.: (PUBLIC NUISANCE):

Section 133 of Cr.P.C. allows a District Magistrate / Sub Divisional Magistrate or


any other Executive Magistrate specially empowered by the State Government to
address the public nuisances. This power can be exercised either on receipt of a
police report or other information. public nuisance that can be treated under this
section fall under six categories.11.

10 Augusthy V. Varkey, 1989 (1) KLT 654.

11 Tejmal Panamchand Burad v. State of Mah


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CATEGORIES OF PUBLIC NUISANCE:

Unlawful obstruction or nuisance to any public place or in any event, river or


canal, which is or may be legally used by the public. The conduct of any trade or
profession, or detention of goods or merchandise, damaging to health or the
physical comfort of the community. The construction of a building or disposal of
any substance, as occasion may conflagration or explosion. Any building, tent
structure, or a tree that is likely to fall and cause personal injury. Any tank, pit or
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excavation near any way or public place. Any dangerous animal, which
demands to be destroyed or otherwise disposed confined. 133 (1) Cr.PC as
executive magistrate U / can make a provisional order requiring the person
causing such obstruction or nuisance, or in the trade or profession, or preserve
such goods or merchandise, or owning or possessing or control such a building,
tent, structure, substance, tank or well digging or to own or possess such an
animal or a tree, in a period to be determined in order to remove such obstruction
or nuisance, etc. ., destroy, limit or eliminate these dangerous animals as
mentioned above, or if he objected to do, to appear before it or another
subordinate executive magistrate of him at a time and place determined by the
order and justification as provided why the order should not be absolute. No
orders duly made by an executive magistrate under this section shall be
questioned by a civilian court. (Sec. 133 (2) Cr.P.C) The order placed s U / 133
(1) Cr.P.C., if possible, be served on the person against whom it is made in the
manner provided by subpoena. If it can not be so used, it must be notified by
proclamation and the copy is stuck in a conspicuous place (Sec. 134 Cr.P.C.). If
after spending conditional order, the executive magistrate believes that its
leadership has not respected nor to show the order must be made absolute and
liable to a penalty under section 188 IPC. (S Punishment U / 188 is simple
imprisonment for one month or a fine of Rs 200 / -. Or both If the person against

12 Perreira, AIR 1967 Goa, Daman and Diu.


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whom an order of U / 133 Cr.PC is made appears and denies the existence of a
public law as alleged. the executive magistrate investigating the matter and if it
finds that there is no reliable evidence to support this refusal, it must stay
proceedings until the issue be decided by a competent court and if he considers
that there is no evidence in support of this refusal, he shall proceed U/s. 138
Cr.P.C.,13 he proceeds U / s. 138 Cr.PC, and inquire about the matter. (Sec. 137
(2) Cr.PC) and the person against whom an order under section 133 is made, and
seems to show cause against the order, and in obtaining evidence, if the executive
magistrate is satisfied that order, both initial and subject to the amendments it
deems necessary, reasonable and appropriate in order to be absolutely no change
or, as the case may be with such a change, and if it is not satisfied, no further
proceedings shall be taken in the case (138 Cr.PC)

SECTION 143 Cr.P.C.: (EXECUTIVE MAGISTRATE MAY PROHIBIT


REPETITION OR CONTINUANCE OF PUBLIC NUISANCE):

An executive magistrate can prevent the repetition or continuation of public


nuisances Sec 143 Cr.P.C. A district magistrate or sub divisional magistrate or
any other executive officer authorized by the State Government in this behalf,
may order any person not to repeat or continue a public nuisance within the
meaning of the CPI (45 of 1860) or special or local law.

SECTION 144 Cr.P.C.: (Power to issue orders in urgent cases of nuisance


and apprehended danger):

Section 144 Cr.P.C. to be made use of for the prevention of disorders, disorders
and disadvantages, and to ensure the public good. The restrictions provided for in
Article 144 Cr.P.C. is anticipatory. anticipation restrictions are imposed particular

13 Bechand teli, 1924 47 ALL 341.


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kind of activities in an emergency. 14 If the executive magistrate upon receipt of
the request by the police, believes that there are sufficient grounds to proceed
under this section and immediate prevention or rapid action is desirable, it may,
by a written order indicating the important facts of the case, direct any person to
refrain from a certain act, etc., if executive magistrate considers that this direction
is likely to prevent, or tends to prevent obstruction, annoyance or injury to
anyone with a regular job causing danger to human life, health or safety or
disturbance of public tranquility or a riot or error. Preserving peace and public
tranquility is the first function of government and the aforesaid power is vested in
the executive magistrate for it to fulfill this function effectively for emerging
situations.15 Preservation of the public peace and tranquility is the primary
function of the Government and aforesaid power is conferred on the Executive
Magistrate to enable him to perform that function effectively during the emergent
situations.

An order under this section may, in emergencies or in cases where the


circumstances do not allow the portion in time because of a notice to the person
against whom the order is directed to be spent "Ex -Parte ". (Sec. 144 (2) Cr.P.C)
the order made by the executive magistrate is directed to a particular person or
the general public or specified groups of place or a particular region. 16 (Sec.
144(3) Cr.P.C.,) The order is proclaimed by public announcement and display at
important places.

The order will specify the period for which they remain in force and the area
covered by it. This order can be maintained in force for a maximum period of two
months and if the state government is satisfied with the prevailing condition,

14 B.B.N school V. District Magistrate ALD, 1990 Cr LJ 422

15 Ummul culus V. Ex Magistrate, Union Territory, 1991 Cr LJ 262. (KER)

16 Ravi Raman Prasad V. State of Bihar, AIR 1994 SC 109.


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direct that the order made by the Executive Magistrate shall remain in force for
an additional period not exceeding six months from the date on which the order
made by the executive magistrate would, but for this extension, expired as it may
specify in the notice. (Sec 144 (4) Cr.P.C.). 17 An executive magistrate who issued
the order or the subordinate magistrate to him or the State Government may
rescind the order on its own initiative or at the request of the injured party.18

(Sec. 144(6) Cr.P.C)

This is the provision usually use in order to avoid problems and to maintain
public peace and the existing law and order during the celebrations of Moharum
or other festivals or hold meetings processions passing along the way public
prohibiting the assembly of five or more people carrying weapons or deadly
weapons, including knives, sticks, stones, bricks, etc. 19

When the situation is very serious apart from Section 144 order, prohibiting the
assemblies etc., armed forces are called out to maintain Law and Order. In some
situations CURFEW restricting the movement of public is also imposed and legal
provision under which the prohibitory orders of CURFEW are issued also to be
only U/s 144 Cr.P.C.

17 Nand Kishore Tiwari V. Collector, 1993 Cr LJ 2883 (MP)

18 Tirunarasimha Chari, (1895) 19 Mad 18, 20.

19 Ram Nath Choudary (1907) 34 Cal 897,


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CONCLUSION

In 1969 law commission report which talks about one of the main
recommendations of the Commission is to provide for the separation of the
Judiciary from the Executive on all India basis in order to achieve the uniformity
in this matter. Now in CrPC there is an allocation of magisterial functions
between two categories of Magistrates, Judicial" under the control of High
Court and Executive" under the control of State Government.

In every district and in every metropolitan area, the State Govt. may appoint as
many persons as it thinks fit to be Executive Magistrates and shall appoint one of
them to be the District Magistrate. The State Govt. may appoint any Executive
Magistrate to be an Additional District Magistrate, and such Magistrate shall
have of the powers of a Dist. Magistrate under this Code or under any other law
for the time being in force as may be directed by the State Govt. Whenever, in
consequence of the office of a Dist. Magistrate becoming vacant, any officer
succeeds temporarily to the executive administration of the district, such officer
shall, pending the orders of the State Government, exercise all the powers and
perform all the duties respectively conferred and imposed by this Code on the
District Magistrate .

Under the Criminal Procedure Code wide powers have been conferred on an
Executive Magistrate to deal with emergent situations. One such provision deals
with the Magistrates powers to impose restrictions on the personal liberties of
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individuals, whether in a specific locality or in a town itself, where the situation
has the potential to cause unrest or danger to peace and tranquility in such an
area, due to certain disputes.

The function exercisable by the executive magistrates under the code may be
executive , administrative or judicial but when acting under any law other than
Crpc they can exercise only executive or administrative function .

Under the code of criminal procedure executive magistrate have a wide power for
deal with the emergent situation. Executive magistrate are generally not
competent to take cognizance of an offence or to hold trail of an accused charged
with an offence . in this context reference may be made to section 21 of the
bonded labour system abolition act 1976 which authorises state govt to confer on
an executive magistrate the powers of a judicial magistrate .

There is a broad divide between the powers conferred and powers conferrable by
or under the code on the executive magistrate. The powers conferred by the code
on the executive magistrate are the powers which are attached to the post of
executive magistrate. Any person appointed as executive magistrate is entitled to
exercise such power. The power located under section
107,108,109,110,129,145,147 etc. is the instances of such powers. There are not
power conferrable on the executive magistrate thought they may be conferred on
others like the commissioner of police under sec 20 sub sec (5). There are other
provision in the code such as section 133,143,144, which may be said to be
conferrable powers under the code . the executive magistrate cannot exercise
such powers unless they are empowered in this behalf.

After analysis of the section 144 of crpc in light of judicial pronouncement i


found that various cases filed for challenging for constitutional validity of section
144 of crpc and its discretionary powers are conferred upon the Magistrate, there

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are various fetters on its exercise so as to prevent any arbitrariness or unfairness
in the order. The fact that the High Court can review the order of a Magistrate
under this section makes the exercise of this power more rational. now days the
increasing cases of riots and other incidents ruining public peace and tranquility
has made it mandatory for the Magistrates to have such powers so as to secure
the common people the safety and peace which is essential for their living.

LIST OF CASES

[1] Madhulimaye, AIR 1971 SC 2486.

[2] C.v krishnappa shetty v. Karnataka, 1979 Cr IJ (NOC) 184

[3] Sudharshn singh v. Govind, 1971 Cr LJ 1822

[4] Ram saran singh v. Ramakanth 1962 Cr LJ 575

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[5] Gajanand, 1943 Nag 609; AIR 1943 Nag 88.

[6]Mithya v. State of Rajasthan, 1987 Cr LJ 1042 Raj.

[7] Ram Birich Ahir, 1926 6 PAT 177, 183 AIR 1926 PAT 569.

[8] Hari Telang, 1900 27 Cal 781.

[9] Ambica Proshad, 1885 10 Bom 174, 175

[10]Naresh Kumar Jain v. State of UP, 1993

[11] Augusthy V. Varkey, 1989 (1) KLT 654.

[12] Tejmal Panamchand Burad v. State of Mah

[13] Perreira, AIR 1967 Goa, Daman and Diu.

[14] Bechand teli, 1924 47 ALL 341.

[15] B.B.N school V. District Magistrate ALD, 1990 Cr LJ 422

[16] Ummul culus V. Ex Magistrate, Union Territory, 1991 Cr LJ 262. (KER)


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[17] Ravi Raman Prasad V. State of Bihar, AIR 1994 SC 109.

[18] Nand Kishore Tiwari V. Collector, 1993 Cr LJ 2883 (MP)

[19] Tirunarasimha Chari, (1895) 19 Mad 18, 20.

[20] Ram Nath Choudary (1907) 34 Cal 897,

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